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[2002] FCAFC 37
respondent. The application for leave to appeal and the purported notice of appeal were dismissed.
Piepkorn attempted to challenge a judge's direction that the court registry not issue her proposed application. The Full Court assumed, without deciding, that the direction could be treated as a judgment for appeal purposes, but said it was interlocutory and therefore required leave to appeal. It found no sufficient doubt about the direction and no substantial injustice in refusing leave. The proposed claim appeared to repeat matters already finally decided, and the appeal papers did not identify proper grounds. The Court dismissed the leave application and purported appeal.
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2,114 words · generated 29/09/2026
Henriette Piepkorn lodged a proposed application against Caroma Industries Ltd, dated 19 June 2001. The material described the proposed case in unclear terms, referring to “Constitution 51(xxiv), Law Court Contract”, a District Court ruling, a bankruptcy action, and a counterclaim. The relief sought included an order or declaration dismissing “sequestration order 476/2000” and restitution. The affidavit also referred to alleged employment-contract rights and asked for the bankruptcy order to be dismissed and her credit line cleared. Those are the applicant’s stated allegations and requests, not findings made by the Full Court. [2]-[3]
1 cited instrument linked from this judgment.
The district registrar referred the document to a judge under O 46 r 7A of the Federal Court Rules. That rule allowed a registrar, where a document appeared on its face to be an abuse of process or frivolous or vexatious, to refuse it, or to seek a judge’s direction about whether it should be accepted or issued. On 26 July 2001, the judge directed the registrar to refuse to issue the proposed application. [4]-[6]
The judge considered the proposed application and its supporting affidavit, as well as the earlier sequestration proceedings. He concluded that, despite the document’s lack of clarity, the apparent real claim was to set aside the sequestration order and revive the subject matter of an earlier District Court proceeding. He considered the proposed claim to have no apparent prospect of success and to be frivolous and vexatious. [6]-[7]
Piepkorn lodged a notice of appeal and later an application for leave to appeal. The notice alleged, among other things, prejudice and that the judge had perverted the course of justice. The Full Court did not accept those allegations as establishing proper appeal grounds. It noted that the previous Full Court decision had rejected an allegation that the judge was prejudiced. [9]-[11]
The Full Court, comprising North, Goldberg and Hely JJ, dismissed the application for leave and the purported appeal on 1 March 2002. The respondent did not appear. The Court’s task was not to re-decide the earlier bankruptcy or District Court disputes. Its focus was the legal character of the refusal-to-issue direction, whether leave to appeal was required, and whether the material disclosed grounds warranting appellate reconsideration. [12]-[20]
There is a date inconsistency within the reasons. Paragraphs 6 and 7 refer to the sequestration order as made on 13 March 2000, and paragraph 11 says that the Full Court dismissed the appeal from that order on 28 August 2000. But paragraph 11 also states that Mansfield J made the order on 13 March 2001. The judgment does not reconcile these dates. The operative reasoning elsewhere refers to the order as made on 13 March 2000. [6]-[7], [11]
The Court first addressed whether the direction could be appealed as a “judgment” under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth). It recorded that the Act defined “judgment” to include a judgment, decree or order, whether final or interlocutory. The Court also noted that it had no direct authority on whether an O 46 r 7A direction was such a judgment. Rather than deciding that question, it assumed for the purposes of the argument that the direction was a judgment within the section. [12]-[13]
That assumption did not resolve whether an appeal could proceed without leave. The Court treated the direction as interlocutory because it did not finally determine the parties’ rights as a matter of law. It emphasised the legal, rather than practical, effect of an order when distinguishing final from interlocutory decisions. As support, it referred to National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) Pty Ltd and quoted Gibbs CJ’s discussion in Carr v Finance Corp of Australia Ltd (No 1). [14]-[15]
Section 24(1A) provided that an appeal from an interlocutory judgment could not be brought unless the Court or a judge gave leave. The Court applied the considerations stated in Decor Corporation Pty Ltd v Dart Industries Inc and Jarrett v Seymour: whether the decision was attended by sufficient doubt to warrant reconsideration and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. [14], [16]
On the first consideration, the Court found no sufficient doubt. It said the judge had made no error of law. Although the proposed application and affidavit were difficult to understand, the apparent substance was a renewed effort to challenge the sequestration order and revive the District Court proceeding. [17]
The Full Court considered that the earlier proceedings had already determined those matters. It stated that the applicant’s appeal from the sequestration order had been dismissed on 28 August 2000 and that the matter was res judicata between Piepkorn and Caroma. It cited Jackson v Goldsmith and Effem Foods Pty Ltd v Trawl Industries Pty Ltd for the proposition that, once judgment has been entered, another proceeding cannot be maintained in respect of the same cause of action or claim. [6], [17]
On the second consideration, the Court said no injustice would result from refusing leave because the matter about which Piepkorn appeared to complain had been finally and conclusively determined against her. It also found that neither the notice of appeal nor the affidavit supporting leave identified proper grounds for appellate review. [17]-[18]
Finally, the Court addressed the summary-refusal context. It cautioned that the power to prevent abuse of process and frivolous or vexatious claims must be exercised carefully, because legitimate claims should not be summarily shut out. But it adopted the threshold expressed in Walton v Gardiner: a claim that is clearly incapable of success and doomed to fail at the outset may constitute an abuse of process. The Full Court considered this proposed proceeding to meet that description. [19]
The judgment is narrow. It does not decide whether a direction under O 46 r 7A is, as a general proposition, a “judgment” appealable under s 24(1)(a). The Court expressly said that there was no direct authority on the question, and assumed the point without deciding it. Accordingly, the judgment cannot be read as settling the appealability of every registry refusal direction. [12]-[13]
The Court did apply the statutory distinction between final and interlocutory judgments. It treated the legal effect of the direction, rather than its practical consequence, as relevant to whether the parties’ rights had been finally determined. Since the direction did not finally dispose of those rights as a matter of law, it was interlocutory for the Court’s analysis, making the leave requirement in s 24(1A) relevant. [14]-[15]
For leave, the judgment applied the two considerations drawn from Decor Corporation and Jarrett. It did not announce a new test. Its contribution in this case was the application of those considerations to a direction refusing to issue a proposed proceeding under O 46 r 7A: no sufficient doubt, no proper appeal grounds, and no substantial injustice from refusing leave where the matter had already been conclusively determined. [16]-[18]
The decision also restated the balance involved in summary control of proceedings. Courts should take care not to shut out legitimate claims summarily, but may prevent the maintenance of a claim that is plainly doomed to fail. The Court applied that approach to the particular proposed claim and procedural history before it. [19]
The supplied judgment gives no basis to describe a broader change in the law before or after 2002. It identifies earlier authorities, but contains no subsequent judicial treatment. The account of the “before and after” position is therefore limited to the propositions and authorities stated in this judgment.
At [15], the Court says it is “the legal effect of the order and not its practical effect” that matters in deciding whether proceedings have finally been determined. In plain English, an order’s real-world impact alone does not decide whether it is final. The Court looks to what the order legally determines. Here, it characterised the refusal-to-issue direction as interlocutory. [15]
At [16], the Court states the leave considerations: whether there is enough doubt about the decision to justify a Full Court reconsidering it, and whether refusing leave would cause substantial injustice if the decision were wrong. In plain English, an applicant seeking leave must satisfy the Court on both the need for appellate review and the consequence of refusing review, as expressed in this case. [16]
At [17], the Court says the earlier matter was “finally and conclusively determined” and “res judicata”. In plain English, the Court treated the proposed proceeding as an attempt to bring back a claim already decided between the same parties. That conclusion was tied to the Court’s understanding of what the proposed application sought and the earlier judgment’s effect. [17]
At [19], the Court cautions that summary dismissal should be exercised with great care, but says a claim that “cannot possibly succeed” and is “doomed to failure at the outset” may be an abuse of process. In plain English, the power is not meant to exclude arguable, legitimate claims, but can be used where the court considers the proceeding plainly incapable of succeeding. The Full Court regarded the present proposed proceeding as falling within that category. [19]
This judgment is most directly relevant to a procedural situation involving a proposed document presented to a Federal Court registry that a registrar considers, on its face, to be frivolous, vexatious or an abuse of process. O 46 r 7A is central to the facts and the Court’s reasoning. [1], [4]-[7]
It is also relevant where a party seeks leave to appeal from an interlocutory ruling or direction. The judgment sets out the considerations it applied under s 24(1A), while leaving unresolved whether an O 46 r 7A direction is necessarily a judgment under s 24(1)(a). [12]-[16]
A further close factual match would involve a proposed proceeding that, as characterised by the Court, seeks to reopen a claim already finally determined between the parties, without disclosing proper grounds for appeal or new legal substance. In Piepkorn, the Full Court concluded that the apparent request to challenge the sequestration order and revive the earlier District Court matter had already been determined. [17]-[18]
The judgment should not be treated as deciding the merits of every underlying bankruptcy, employment, constitutional or contract dispute. Its stated reasoning concerns the registrar’s refusal-to-issue process, leave to appeal, the prior final determination, and abuse of process. [2]-[3], [12]-[20]
The supplied judgment includes no post-2002 decisions discussing or applying Piepkorn. On the material provided, later treatment cannot be assessed, and no claim about whether later courts followed, distinguished or limited the decision can be substantiated.
The judgment itself refers to earlier decisions. It says that Bird v Free, Jessop v Westpac Banking Corporation and Gunter v Doogan had involved assumptions, for the purposes of argument, about an appeal right in circumstances involving interlocutory directions. It also relies on Decor Corporation and Jarrett for the leave considerations. Those are references to earlier authorities, not evidence of later treatment of Piepkorn. [12], [16]
The source text therefore supports identifying the judgment’s reasoning and authorities, but not tracing the subsequent precedential history. Establishing that history would require later judgments or a legal database beyond the supplied material.
The most explicit open question is whether a judge’s direction under O 46 r 7A is a “judgment” for the purposes of s 24(1)(a). The Full Court noted the absence of direct authority and deliberately left the question undecided. [12]-[13]
The reasons do not establish a universal rule about which registry documents are sufficiently frivolous, vexatious or abusive to be refused. They apply the rule to the proposed application as the Court understood it, especially its apparent attempt to reopen matters already determined. [7], [17], [19]
The judgment also does not resolve how the leave considerations apply in materially different circumstances, such as where an applicant identifies a specific legal error or where refusing leave may cause a distinct injustice. The Court’s conclusion was that the materials before it disclosed no proper appeal grounds and that the matter had been conclusively determined. [16]-[18]
Finally, the date discrepancy in paragraph 11 remains unexplained within the judgment itself. The other relevant passages refer to the sequestration order as made on 13 March 2000, but paragraph 11 refers to 13 March 2001. Readers relying on that chronology should note the inconsistency rather than silently treating one date as certain. [6], [11]
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REASONS FOR JUDGMENT THE COURT: 1 The applicant has filed a notice of appeal, and an application for leave to appeal, from a direction given by a judge of the Court to the district registrar of the Court in the South Australia District Registry pursuant to O 46 r 7A of the Federal Court Rules that the district registrar refuse to issue an application of the applicant bearing the date 19 June 2001 which was lodged by the applicant with the Registry on or shortly after that date. 2 The application lodged by the applicant was expressed to be an application under the "Constitution 51(xxiv), Law Court Contract". In the application, the applicant claimed: "1. The respondent obtained a District Court ruling, by breaching law court contract 469/98. 2. The respondent enacted a bankruptcy action, sequestration order 476/2000. 3. Entering a counter‑claim to oppose the applicants contract.", and claimed the following interlocutory relief: "An order or declaration that the sequestration order 476/2000, be dismissed, and restitution for illegal action by the respondent. Seen fit by the Federal Court." 3 The applicant lodged with the application an affidavit in which she stated: "1. That the bankruptcy notice taken out by the respondent, was done by overriding the applicants action in the District Court contract 469/98. 2. The respondent entered a Common Law action, 991/84 as a counterclaim the an Industrial action of breach of contract - employment agreement - contract. 3. The respondent using constitution 51(xxiv) to prevent persecution of contractual right. Breach of contract - illegal dismissal, employment contract. 4. The respondent breaching the applicants District Court contract. 469/98. By entering the counter-claim, under the applicants name. 5. The applicant seeks to have the bankruptcy order dismissed and the applicants credit line cleared of any defamation of name." 4 On 25 July 2001, the district registrar referred the application to a judge of the Court pursuant to O 46 r 7A of the Federal Court Rules and requested that a direction be given that the district registrar refuse to accept or issue the proposed application. 5 Order 46 r 7A provides: "If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him: (a) to accept or issue it; or (b) to refuse to accept or issue it; or (c) to refuse to accept or issue it without the leave of a Judge first had and obtained." 6 On 26 July 2001, pursuant to O 46 r 7A of the Federal Court Rules, the judge directed the district registrar to refuse to issue the application. In the direction, the judge observed that he had regard to the proposed application and to the affidavit which had been lodged and also had regard to the proceedings in which a sequestration order was made in respect of the estate of the applicant on 13 March 2000 at the suit of the respondent, and to an appeal from that order which was dismissed by a Full Court of the Federal Court on 28 August 2000: Piepkorn v Caroma Industries Ltd [2000] FCA 1230. 7 In the direction, the judge found that the application was unintelligible, but concluded from the claim for interlocutory relief and par 5 of the affidavit that the applicant's real claim was to set aside the sequestration order made on 13 March 2000. The judge concluded that there was no apparent prospect of such a claim succeeding. He found that the grounds set out in pars 1 to 4 of the affidavit were obscure and did not assert primary facts upon which any conclusion of law might be reached such as to warrant the setting aside of the sequestration order. The judge noted that the applicant had appealed from the making of a sequestration order and that the appeal had been dismissed on 28 August 2000 which was the appropriate avenue to seek to have the making of the sequestration order set aside. The judge concluded that the proposed application had no prospects of success and was frivolous and vexatious. 8 On 27 July 2001, the district registrar wrote to the applicant informing her that the judge had directed her to refuse to issue the application and that, accordingly, she refused to issue the application. 9 On or about 8 August 2001, the applicant lodged a notice of appeal from the direction of the judge and specified the following grounds of appeal: "That Justice Mansfield J, in his refusal of the action sought, perverts the course of Justice, in his personal prejudice against the appellant. Justice Mansfield contradicts his own confirmation that the appellant is still employed. As proven in Piepkorn H v Gerard Industries Pty Ltd no S97/1999." In the notice of appeal, the applicant sought the following orders: "1. That the application between Piepkorn H v Caroma Industries Pty Ltd be set down for hearing. 2. As the matter is of Federal Jurisdiction; and that the appellant is still employed; and the bankruptcies be dismissed. [As to prevent prosecution no 251/93. 3. That Justice Mansfield uphold his jurisdiction and honour the Industrial Law of the work agreement." 10 On 6 September 2001, the applicant lodged with the Court an application for leave to appeal from the direction of the judge given on 26 July 2001 and an affidavit in support of the application. In the application it was stated that leave to appeal was required by: "Constitution 51(xxiv), (xxxv.), (xvii), Conciliation and Arbitration Act s.144A. HENRIETTE PIEPKORN, (Applicant) & CAROMA INDUSRIES LTD, (Respondant)." The application stated that the grounds appeared in the annexed affidavit. In the affidavit the applicant stated: "1. I, the Applicant entered a summons against the employer CAROMA INDUSTRIES LTD ON THE 19th June, 2001. As the Applicant is still legally employed, due to continual legal action in Court: - [Comparable verdicts High Court] 2. Justice MANSFIELD J., as an employee of the court has failed in his legal duties of obligation to his contract of the legal court, through his ethics to the third party. constitution 51(xxiv.) 3. As state in paragraph 1:- Comparable Verdicts, High Court:- R. v. J. B Sweeney, Ex parte Northwest Exports Pty Ltd. (1981) 35 A.L.R. 135. The court ruled constitutional validity of s.144A and that A144A(5) was a valid exercise of commonwealth power: -Conciliation and arbitration - constitution 51(xxxv.) 4. Justice Mansfield enacted third party constitution 51(xxiv); to prevent prosection, SB251/93 PIEPKORN H. & HOCKLEY B.J. Then Justice Mansfield personal predjuce against the applicant, when a question of law was ask about the refusal to employ; n. S97/99, PIEPKORN H. & GERARD INDUSTRIES PTY LTD. In this matter Justice Mansfield J., directed the respondant; not to answer, confirmed the applicants employment. 5. If in law Justice Mansfield is well aware of the business transaction of the work agreement contract. Then why does he direct to court to prohibit prosecution by refusing to issue the process for hearing? The applicant seeks an appeal against the Justices and Courts action perverting the course of justice and set a legal hearing date." 11 The background to the making of the sequestration order can be gleaned from the judgment of the Full Court on 28 August 2000 in the reasons for judgment of Wilcox J. In short, Mansfield J made a sequestration order against the estate of the applicant on 13 March 2001. The debt, the subject of the petition, namely $2,598.17 plus interest, arose as a result of an order for costs made by the District Court of South Australia in a proceeding commenced by the applicant against the respondent. The debt had not been paid, and there had not been any appeal from the judgment of the District Court. Mansfield J rejected the claim by the applicant that the District Court had no jurisdiction to make the costs order and found that the District Court had not rejected the applicant's claim because of any problem of jurisdiction but had found that no reasonable cause of action was disclosed by the applicant's statement of claim in the proceeding. The Full Court rejected the applicant's submission that the District Court had no jurisdiction to make the costs order against her and also rejected her submission that Mansfield J was prejudiced. Specifically, the Court could see no reason whatever to attribute prejudice to Mansfield J. 12 The first issue which arises for consideration is whether the direction given by the judge on 26 July 2001, pursuant to O 46 r 7A of the Federal Court Rules, is a judgment which falls within s 24(1)(a) of the Federal Court of Australia Act 1976(Cth) which gives the Court jurisdiction to hear and determine: "Appeals from judgments of the Court constituted by a single judge" Section 4 of the Federal Court of Australia Act defines "judgment" as meaning: "A judgment decree or order, whether final or interlocutory, or a sentence". There is no direct authority on the question whether a direction by a judge pursuant to O 46 r 7A is a "judgment" for the purpose of s 24(1)(a) of the Federal Court of Australia Act, although in some cases it has been assumed that there would be a right of appeal to a Full Court for the purposes of the argument in circumstances where the application for leave to appeal, the direction being interlocutory in nature, failed on the merits. See, for example, Bird v Free (1994) 126 ALR 475; Jessop v Westpac Banking Corporation [1999] FCA 1646; Gunter v Doogan [1999] FCA 1648. 13 For the purposes of the argument the Court is prepared to assume, without deciding the issue, that the direction is a judgment of the Court within s 24(1)(a) of the Federal Court of Australia Act. 14 In such circumstances s 24(1A) of that Act becomes relevant as it provides that: "An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or Judge gives leave to appeal." 15 The direction did not finally dispose of the rights of the parties as a matter of law and is accordingly interlocutory in nature. As the Full Court pointed out in National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) Pty Ltd (2001) 183 ALR 700 at 703: "… it is the legal effect of the order and not its practical effect which is relevant to the issue of whether or not the proceedings are finally determined between the parties, was made clear by Gibbs CJ in Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; 34 ALR 449 at 450." In Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 Gibbs CJ said at 248: "The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney … In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present." See also Malouf v Malouf (1999) 86 FCR 134. 16 Accordingly, it is necessary to determine whether leave to appeal should be granted in the circumstances of this case. The general principle applied in making that determination is to ask first whether, in all the circumstances, the direction of the judge is attended with sufficient doubt to warrant it being reconsidered by a Full Court, and secondly whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Jarrett v Seymour (1993) 46 FCR 557. We consider that these tests are appropriate to apply in the circumstances of this case. 17 We do not consider that the judge's direction is attended with any doubt which would warrant it being reconsidered by a Full Court. The judge made no error of law in the direction which he gave on 26 July 2001. It is difficult to discern from the application and the affidavit the grounds upon which the relief claimed was sought. Nevertheless it appears that the application was directed to setting aside the sequestration order made on 13 March 2000 and reviving the subject matter of the District Court proceeding which had been dismissed. So much appears from the claim for interlocutory relief and par 5 of the affidavit lodged in support of that application. That claim has no prospects of success and is undoubtedly frivolous and vexatious and an abuse of the process of the Court. It was finally determined by the judgment and order of the Full Court on 28 August 2000. As between the applicant and the respondent, the matter has been finally and conclusively determined and it is res judicata. Where any proceeding has been brought and judgment has been entered in the proceeding, no other proceeding can be maintained in respect of the same cause of action or claim: Jackson v Goldsmith (1950) 81 CLR 446 at 466‑468; Effem Foods Pty Ltd v Trawl Industries Pty Ltd (Receivers and Managers Appointed) (In Liq) (1993) 43 FCR 510. The notice of appeal lodged by the applicant did not disclose any proper grounds of appeal, nor did the grounds of the application for leave to appeal set out in the accompanying affidavit. There are no grounds on which any appeal might be brought in respect of the direction of the judge. 18 No injustice will result to the applicant if leave to appeal is refused as the matter in respect of which she appears to make complaint has been finally and conclusively determined against her. 19 Although the Court has an inherent jurisdiction to prevent abuse of its process and the maintenance of frivolous and vexatious claims, that jurisdiction should always be exercised with great care as litigants, with legitimate claims, should not be shut out in a summary way from invoking the jurisdiction of the Court: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 92 per Dixon J. However, if it is clear beyond peradventure that a claim cannot possibly succeed and is doomed to failure at the outset, the prosecution and maintenance of such a claim will constitute an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. The present proceeding, which the applicant has sought to bring before the Court, is such a case. 20 The application for leave to appeal and the purported appeal should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Date of Hearing: 1 March 2002
Date of Judgment: 1 March 2002
Piepkorn
Caroma Industries Ltd
[2002] FCA 182
(2001) 183 ALR 700
(1981) 147 CLR 246
(1991) 33 FCR 397
(1993) 46 FCR 557
(1994) 126 ALR 475
(1999) 86 FCR 134
(1950) 81 CLR 446
(1993) 43 FCR 510
(1949) 78 CLR 62
(1993) 177 CLR 378
The application for leave to appeal and the purported notice of appeal were dismissed.